30

THE GREEN BAG

In Murphy v. Deane, 101 Mass. 455, decided in 1869, the Supreme Court of this Common wealth reached the limit. They then held that it was not enough that the plaintiff should prove the injury, that he had been in no apparent fault, and that the defendant had been guilty of negligence, but he must also demonstrate that by no act, that is to say by no thought of his, had he so directly contributed to the misfortune, that had he thought otherwise the accident would not have happened. The judiciary could go no further unless they were prepared to hold that traveling in a train was conclusive evidence of a reprehensible animus. In Murphy v. Deane the scale tipped far, since it established as the measure of legal re sponsibility between plaintiff and defend ant, that the smallest inadvertence on the part of the plaintiff might counterbalance the utmost disregard of life, short of wanton recklessness, on the part of the defendant. Apparently during some years the judi ciary were misled in estimating the relative energy of the forces, the resultant of whose conflict it is their function to express. This phenomenon is not unusual, and its effects are often serious. The culminating decision had hardly been rendered in 1869 before a reaction set in which still continues. Be tween 1870 and 1880 Parliament passed ■three important statutes all drawn to curb centralized capital, in 1871, the Trade Union Act, in 1875 an act to protect strikers against indictments for conspiracy, and in 1880 the Employers' Liability Act. If you wish to see how completely this last statute prostrated Priestley v. Fowler you can read Thomas v. Quartermain 18 Q.B.D. 685. Of late America has distanced England in this direction. Most states have adopted the principle of the employers' liability to servants, in 1887 Congress passed the Inter state Commerce Act, in 1890 the Sherman Anti-Trust Law, and last year the Rate Bill. Yet this seems only the beginning. Most striking of all is the National Em ployers' Liability Act, which was approved

June 11, 1906. This statute reverses the policy of that portion of the judiciary repre sented by the Massachusetts court and suggests a reaction reaching the center of the social equilibrium, a reaction similar to that indicated in Great Britain by the un opposed passage through the Commons of the bill overthrowing the Taff Vale decision. In the second section of the American statute Congress has enacted that " the fact that the employee may have been guilty of contributory negligence shall not bar a recovery where his contributory negligence was slight and that of the employer was gross in comparison, but the damages shall be diminished by the jury in proportion to the amount of negligence. . . . All questions of negligence and contributory negligence shall be for the jury." The whole movement is of the deepest interest to the lawyer, but what must fix our attention here is the effort of the public to enforce stricter canons for judging the animus of corporations, either civilly or criminally, where their acts touch the health or the safety of the citizen. In this momentous conflict the determina tion of the animus underlying negligence plays a foremost part. The courts have attempted more or less openly to assume this function themselves. The legislatures seek to restore the jury to its office. As the courts have formulated the law they have so burdened the plaintiff that human life is cheap, so cheap that it is cheaper than railway equipment; therefore the railways economize on equipment and buy the lives of those immolated. The result is that approximately one hundred thousand per sons are killed or injured annually in railway accidents, relatively few of which are unpreventable. Had the courts adopted an oppo site construction of the law, and held rail ways absolutely responsible for all injuries inflicted by them unless they could demon strate complete absence of blame, it is at least conceivable that accidents would have been found more costly than prevention.